Recongnizing the limits of the right to counsel as a guarantee of justice

Abstract

This paper examines the role of the right to counsel in criminal cases as a structural, theoretical, and actual guarantee of justice. It compares the scope and history of the right to counsel in the United States and Chilean systems and suggests that Chile could benefi t by adopting a more nuanced approach to its criminal adjudication system, retaining elements of inquisitorialism and rejecting extreme adversarialism for petty crimes. Unlike the United States, where potentially severe collateral consequences of even minor criminal convictions make necessary a broad right to counsel, the Chilean system could benefi t from focusing defense resources on more serious crimes. By restricting the scope of the right to counsel to more serious crimes, and by redesigning the system of adjudication and punishment for petty crimes, Chile could not only achieve substantial fi nancial savings but also avoid the problems of hyper-incarceration and punitivism that have come to characterize the criminal justice system in the United States.